International Human Rights Law - Assignment Example

Intеrnаtiоnаl Human Rights Law Your name: Institution name: The human and legal rights developed from transitional justice have strengthened the need for countries moving away from repressive rules and civil war, come to face-to-face with their pasts by promoting peace and accountability, often in very fragile and tenuous contexts1. The dilemma is compounded by transitional governments inheriting ineffective and weak judicial systems which make it difficult to prosecute criminal activities.2 Countries are also faced with the need to overcome deep rooted fears, inequalities and hatreds that pose the danger to the new democratic dispensation and start new circles of impunity and violence.3 Different approaches have been created as alternatives for dealing with questions of past human right abuse and conflict and for promoting sustainable peace. One such approach has been the creation go truth and reconciliation commissions (TRC).4 Beginning with Argentina in 1983, Chile in 1990 and widely known one, South African TRC in 1995. TRCs are preferred mode of transitional justice, and have been created in various regions from Latin America to Africa, to Eastern Europe, to Asia and recently, TRCs have been suggested to be formed in the Arab world.5 This paper will discuss, will reference to relevant authority, the extent to which truth and reconciliation commission (TRCs) and other means by which victims have been offered or have sought reparation for wrongs suffered demonstrate that nations have observed their obligations as outlined. 6 The TRCs in South Africa was established in 1995 to gather evidence from South Africans who had suffered political violence and abuse during apartheid regime.7 After many decades of government repression of black struggles, civil rights, the apartheid government released the late Nelson Mandela, the ANC leader who had been imprisoned for 27 years.8 This gesture led to the end of apartheid rule in South Africa. By 1994, the black people were able to participate in the country’s election. At same time, the ANC’s government was left with a difficult question on how to address the issue of violation of human right during the apartheid period, While simultaneously the government tried to unite its people and move forward.9 Rather than creating War Crimes Tribunal in human right abuses perpetrators would be tried and if found guilty, jailed as punishment for their crimes.10 The government chose to establish a forum which allowed perpetrators of human right abuses to give their accounts of their crimes without fear of reproached and victims to tell their stories. The main aim of South Africa TRC was to heal victims of human right violations that were committed during the period of Apartheid regime, as well as to provide an avenue in which healing can take place in the whole country without ignoring the atrocities that had occurred.11 At some point, the South Africa TRC functioned as a countrywide group therapy session. TRC was rooted in the common belief that a public airing of the past crimes will help both the perpetrators and victims psychologically overcome the past.12 Many have praised the South Africa’s smooth transition from Apartheid rule to a democratic one. But few people realize that the foundation of negotiated settlement which allowed this transition was so controversial when amnesty was granted to people who committed political crimes during the Apartheid’s regime.13 Under this provision, perpetrators who confessed their crimes to the TRC were not prosecuted but they were granted amnesty thorough a formal process of reconciliation. For example, the chairman of South Africa’s TRC, Archbishop Desmond Tutu said “giving amnesty to perpetrators of crime against native South Africans made their election possible because it was only when amnesty was put in, that the boere signed the agreements”. TRC goal was to promote unity and reconciliation in a spirit of understanding among South Africans.14 TRC mandate was to establish the truth about human rights abuses that ere perpetrated by the Apartheid’s regime and to present the truth to the people of South Africans. As Desmond Tutu once said, “in order to unearth the truth about what happened in the past and to lay the ghosts of that past so the ghost will not hunt the people of South Africa; and that it will contribute to the healing of wounded and traumatized”.15 TRC was a carefully organized legal forum and a painfully emotional and honest attempt to address the psychological suffering that state-sponsored violence had been perpetrated against the society.16 Throughout its sittings, South African TRC operated on both of these levels in its effort to embody what is known as restorative justice- a justice that is concerned with the healing of both perpetrators and victims but not retribution. The promotion of National Unity and Reconciliation ACT 34 of 1995 which created South Africa TRC mandated it to fulfill four main objectives.17 First, to research the magnitude and exact character of human right violations perpetrated against South Africans from March 1960 to May 1994. Secondly, allow victims of human right violations to testify of their ordeal and to consider possible compensation for them.18 Third, the commission to employ conditional amnesty to those perpetrators who made complete disclosure of their participation of these crimes, while those perpetrators who did not disclose of their crime within time limit could be prosecuted. And finally, TRC was to compile its findings and present it to the public. In 2011, the Rwandan government through its Justice Minister announced to the world the completion of all the genocide cases in gacaca courts. Gacaca judicial system is a tradition form of communal justice,19 where community chiefs and elders would resolve these cases by imposing compensatory solutions that were aimed at restoring peace and harmony among people in the society they represent.20 After the mass killing of Majority Hutus and Minority Tutsi in 1994, the United Nation Security Council (UNSC) set up an International Criminal Tribunal for Rwanda (ICTR) in Tanzania to prosecute the ring leaders of the Genocide. .21 However, the Rwanda government had a big problem; it had over 250,000 lower-level suspects that waiting trials across the country. The government realized that it will take more than 200 years to prosecute all these cases because the courts had less than 10 judges that were qualified to try these cases. The legislative arm of the government passed into law, giving Gacaca courts powers to try the remaining genocide cases. It has been estimated over two million Genocide related cases have been tried to date under Gacaca court.22 In the Gacaca traditional system, people at the community level elected judges to hear the trial of perpetrators that were accused of all crimes except those suspects who were accused of planning of genocide. Gacaca court gave lower sentences if perpetrators disclosed their crimes, repent and sought reconciliation with the community. Often, confessing prisoners after their sentencing returned to the community without further penalty or received community service orders. The Gacaca trials also served to promote truth and reconciliation by providing a platform for perpetrators of genocide the opportunity to confess their crimes, show remorse and ask for forgiveness in front of victims or victim’s family and the community as a whole. Gacaca also provided a means for victims and victims’ families to learn the truth about the death of their family members and relatives.23 Gacca courts were restorative justice because the whole process was inclusive where the victim, perpetrators and the community participated and at same time the outcome of these courts were satisfying to all parties involved.24 Also, is system empowered the surviving victims of genocide by condemning the crimes and facilitating the perpetrators to apologize and ask for forgiveness, and sometimes it was in tears. In order to fulfill the basic human rights, the cycle of apology and forgiveness had to be included during the hearing of the cases. The possibility for perpetrators these crimes to confess and apologize in return for forgiveness or lighter sentences. This played an important role in the whole reconciliation process.25 “This becomes evident when one considers the emerging numbers of TRC as, for instance that in South Africa”. “The slogan of TRC in South Africa was “Revealing is Healing” and its argument that truth telling among the perpetrators of human right abuses serves as a “therapeutic functions” that underline this assumption”.26 Moreover, psychoanalytical and theological aspect considers truth telling as a method for healing and can contribute to reconciliation.27 The Sierra Leonean Truth and Reconciliation Commission (SLTRC) borrowed heavily on the model of the South African TRC, as an institution that received unprecedented global attention, made an international hero of its chairman, Archbishop Desmond Tutu and inspired considerable reflection on the processes of forgiveness, peace and reconciliation.28 In Sierra Leone, two transitional justice mechanisms was set up to end impunity in that country: Truth and Reconciliation Commission (TRC) and the Special Court.29 This court mandate was to try cases of ring leader that were responsible for these crimes, while the core mandate for this court was to address impunity Sierra Leone. While Sierra Leonean Truth and Reconciliation Commission (SLTRC) was to create an impartial court, historical record of the conflict”, respond to the need of victims, address impunity, promote healing and reconciliation in Sierra Leone; and prevent a repetition of abuses and violations suffered.”30 The jurisdiction of this special court included trying all those masterminds of war crime and crime against humanity in the ten year conflict. Since its inception, Special Court on Sierra Leone had tried 11 people that were believed to be the mastermind of these crimes. One prominent suspect was former Liberian President Charles Taylor and some few warlords. This court contributed towards ending impunity in that country.31 While, Sierra Leone’s TRC provided a platform for both the victims and the perpetrators to recount their suffering and experience, at same time facilitating reconciliation. In Argentina, a system of extreme repression was created against opposition as borne out by the practice of torture, executions and enforced disappearances.32 Around 300 detention centers were developed through Argentina. One of the famous detention center was La Perla and detained around 2000 political prisoners. New arrival in these detention centers were tortured psychologically and physically, even if the detained persons did not possess any information. Most of detainees especially women were subjected to sexual violence, forced to lie down in their own excrement and were made to starve. Some of the detainers were held in tubos- restricted spaces- which were too small that the detainees were obliged to try to sleep in the foetal position.33 Between 1975 and 1984, the Argentina military regime is reported to have committed some 2400 political related assassination, more than ten thousand people were arrested, between 20,000 to 30,000 people disappeared. In addition, thousands and thousands of babies and children were separated from their real parents and families and adopted under false names by the military. The publication of the CONADEP report was followed by the cancellation of freedom and immunity from trial accorded to military junta and principal leaders. The trial for military leaders that were in power from 1976 to 1983 began where the ex-Admiral Emilio Massera and former Major-General Jorge Videla were sentenced to life imprisonment. General Roberto Viola was sentenced to 17 years, and Brigadier-General Orlando Agosti and Admiral Lambruschini were sentenced to 4 and 8 years respectively. All of these senior military leaders where all convicted for illegal deprivation of liberty, murder and torture. In conclusion, Truth and Reconciliations laws that are created after consultation with affected victims of crimes against humanity or human rights abuses are always seen to be effectively in addressing victims concerns, thereby contribute to the objectives of creating an environment that supports reconciliation for the affected people. In addition, specific laws or legislations that give a manageable and clear mandate can easily fulfill the mandate of Truth and Reconciliation commissions. Employees or commissioners that have been seconded to the commissions that encourage neutrality and independent assist in gaining the people support for the Truth and Reconciliation commissions. Truth and Reconciliation Commissions if are given enough time to fulfill their intended mandate and sufficient powers to investigate particular crimes or human rights abuses or compel the cooperation of relevant people may help in the effective achievements of TRCs goals and functions.34 TRCs laws and legislations that encourage accessibility and widespread dissemination of the final report can also help to stop similar war crimes of human right abuses from happening again.35 Creating an institution that is designed to elaborate what really happened during the past and to promote reconciliation that provide a mechanism that addressed those wrongs or crimes that were committed in the past, with the objective of bringing the people together.36 This objective can be achieved if the people accept the Truth and Reconciliation that has been formed, with a particular focus on the perpetrators and victims of war crimes or human rights abuse.37 If the Truth and Reconciliation Commissions are widely respected and integrated the view from both affected victims and the public into its operations, and the Truth and Reconciliation Commissions is able to resist unrealistic expectations and political pressure from the government and the public, it can then provide a potent tool for allowing a country to address or persecute war crimes or past human rights abuses and achieve unity. Bibliography Alison, Allan, ‘Truth and Reconciliation: A Psychological Perspective’, Ethnicity & Health , (5)3 (2003) Amnesty International. The Disappeared in Morocco (London: Amnesty International, 2005) Arenhövel, Michael, ‘Democratization and Transitional Justice’, Democratization 15 (3) (1998) Brounéus, Kennedy,‘Truth-Telling as a Talking Cure? Insecurity and Retraumatization in the Rwandan Gacaca Courts’, Security Dialogue 39 (1). (2006). Burnet, John, ‘The Injustice of Local Justice: Truth, Reconciliation, and Revenge in Rwanda’, Genocide Studies and Prevention, 3 (2) (2008) Goodman, Daniel ‘Why Should Killers Go Free: Lessons from South Africa’, Washington Quarterly. Vol (22)2 (2002) Hayner, Pascal. The Sierra Leone Truth and Reconciliation Commission: Reviewing the First Year (New York: International Center for Transitional Justice, 2000). Kirkby, Charles, ‘Rwanda’s Gacaca Courts: A Preliminary Critique’, Journal of African Law, (50)2 (2004). Minow, Michael Between vengeance and forgiveness: Facing history after genocide and mass violence (Boston, MA: Beacon Press, 1998). O’Donnell, George. and Schmitter, Peter. Transitions from Authoritarian Rule: Tentative Conclusions about Uncertain Democracies (Baltimore and London: Johns Hopkins University Press,1986). Panizza, Francis, ‘Human Rights in the Processes of Transition and Consolidation of Democracy in Latin America’, Political Studies, Vol. 43 (2000), Stanley, Elvis ‘Evaluating the Truth and Reconciliation Commission’, The Journal of Modern African Studies, Vol 39(3), (2005). Tutu, Desmond. No Future without Forgiveness (New York, NY: Random House, Inc, 1999). Read More